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Steven v. Nicole

Supreme Court of Alaska

August 16, 2013

STEVEN D., Appellant,
v.
NICOLE J., Appellee.

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John C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellant.

Phyllis Shepherd and Stephanie Patel, Law Offices of Dan Allan and Associates, Anchorage, for Appellee.

Before: FABE, Chief Justice, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

A woman living in Alaska filed a petition in Alaska to enforce summer visitation with her son, who lives in Tennessee with his father. After the superior court resolved the visitation issue, the father appealed, arguing that the superior court lacked jurisdiction to hear the case or, in the alternative, that the superior court should have voluntarily ceded jurisdiction to Tennessee because Alaska is an inconvenient forum. We conclude that the superior court had jurisdiction to hear the case and did not abuse its discretion by deciding that Alaska is not an inconvenient forum.

II. FACTS AND PROCEEDINGS

Steven D. and Nicole J.[1] were married in 1994 in Fairbanks and have two children, Christopher and Warren. After seven years of marriage, Steven filed a petition for a protective order against his wife in Alaska, alleging that Nicole had physically attacked him and Christopher, and that Nicole had disappeared with the children for weeks at a time. Two weeks later, Steven filed a divorce complaint in superior court in Alaska.

The superior court found that Nicole represented a credible threat to the physical safety of Steven and the children and granted Steven's petition for a protective order. In 2004, after litigating the divorce action in Alaska for several years, Steven and Nicole reached a settlement granting Steven joint legal custody and primary physical custody of the children in Tennessee, where he had since moved. During the summer and at other specified times, the children were to fly to Alaska to visit Nicole. The settlement agreement was approved by the superior court in March 2004.

In May 2012 Nicole filed a motion in Alaska to enforce visitation, claiming that Steven had refused to surrender the children for summer visitation when she flew to Tennessee to collect them. The next day, a Tennessee circuit court issued an ex parte order exercising temporary emergency jurisdiction over the children and preventing the children from being removed from Steven's care until either the Tennessee circuit court or the superior court in Alaska had conducted a full hearing. Steven filed an opposition to Nicole's motion to enforce visitation in Alaska and moved to transfer jurisdiction over the proceedings to Tennessee.

In June 2012 the superior court in Alaska held a hearing on the motion to enforce visitation as to Warren.[2] The superior court found that it had continuing and exclusive jurisdiction over the case under the Uniform Child Custody Jurisdiction and Enforcement

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Act (UCCJEA) and declined to transfer jurisdiction to Tennessee. After hearing testimony from Steven and Nicole and Nicole's husband, the superior court ruled that it would enforce summer visitation if Nicole could pass a drug test.

Nicole waited about three weeks before taking and passing a hair follicle test as ordered by the superior court. After giving Nicole an opportunity to explain the delay, the superior court found that she had not justified her failure to obtain a timely drug test. The court ruled that summer visitation in 2012 would not occur, but that visitation over Christmas break might occur if Nicole could take and pass a drug test within a month prior to the scheduled visit. At Steven's request, the superior court committed to writing its decision to deny Steven's motion to transfer jurisdiction to Tennessee.

Despite prevailing below on his opposition to Nicole's motion, Steven now appeals the superior court's order, arguing that the court lacked jurisdiction under the UCCJEA or, in the alternative, that the superior court should have voluntarily ceded jurisdiction as an inconvenient forum to Tennessee. Steven raises no other issues on appeal.

III. STANDARD OF REVIEW

Whether a court can exercise jurisdiction under the UCCJEA is a question of law, which we review de novo.[3] A superior court's decision to decline, or to refuse to decline, jurisdiction as an inconvenient forum is reviewed for abuse of discretion.[4] An abuse of discretion is found only if we are left with a " definite and firm conviction" that a mistake has been made.[5]

IV. DISCUSSION

A. The Superior Court Had Jurisdiction Under The ...


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